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Military may have committed crimes in prostitution flap

If military personnel end up facing criminal charges in connection with the use of prostitutes prior to President Barack Obama's recent trip to Colombia, the military members may have another president to blame for their trouble: President George W. Bush.

Back in 2005, under pressure from human trafficking opponents, Bush issued an executive order making "patronizing a prostitute" a crime under the Uniform Code of Military Justice. The move was aimed at cracking down on military use of prostitutes in peacekeeping operations, but it generated some controversy in places like Germany, where prostitution is relatively well-regulated.

According to Stars & Stripes, U.S. military personnel (and even some of their family members!) complained that the ban made little sense since prostitution was legal and accepted in Germany. Some also doubted that the new provision could or would be enforced. The change in military policy Bush made in 2005 drew notice in Nevada, where the consensus seemed to be that it banned soldiers and sailors from visiting the legal brothels in that state.

Secret Service personnel aren't covered by the UCMJ. There is no similar federal statute that applies to civilians, which raises the possibility that the military folks could wind up with criminal convictions out of this, while the Secret Service agents and uniformed officers just have their jobs at risk.

"You have two different parts of the federal work force performing highly-sensitive missions committing the same conduct and it's possible they'll face substantially divergent outcomes," said Eugene Fidell, a lecturer on military law at Yale Law School.

Of course, it's possible the Secret Service personnel could face more punishment, at least administratively, because there may be fewer comparable cases for them to point to. Military personnel getting in some sort of altercation with a prostitute seems like the kind of thing certain to happen on a regular basis, given the proximity of brothels to military bases in places like Korea and the Philippines.

However, Fidell noted that the UCMJ provision isn't simply a straightforward ban on paying for sex. The offense has a few more elements:

‘‘(b)(2) Patronizing a prostitute.

(a) That the accused had sexual intercourse with another person not the accused’s spouse;

(b) That the accused compelled, induced, enticed, or procured such person to engage in an act of sexual intercourse in exchange for money or other compensation; and

(c) That this act was wrongful; and

(d) That, under the circumstances, the conduct of the accused was to the prejudice of good order and discipline in the armed forces or was of a nature to bring discredit upon the armed forces."

Fidell said lawyers might argue that the "wrongful" requirement excuses conduct that was legal in the country where it look place. Prostitution is legal in Colombia, but it's unclear if everything that happened last Wednesday night was entirely legal since the women involved were allegedly picked up at a nightclub/brothel and taken to a hotel.

"They can make the argument that, if it occurred in a place where it was lawful, it doesn't violate that article" in the UCMJ, Fidell said.

The military has already said that at least some of the about 10 servicemembers said to be involved violated curfew. That could amount to a separate UCMJ offense of disobeying an order. Any military officer involved could also face a "conduct unbecoming" charge, which is a separate criminal offense.

Setting criminal charges aside for the moment, both agencies have a pretty effective way of ending the careers of the personnel involved: revoking their security clearances. Many things that are no crime, like failing to pay debts or being married to a suspicious foreigner, can disqualify one from getting or keeping a security clearance. As far as I know, the provisions that bar clearances for people who've used drugs don't take account of where someone was when he or she did that. Like prostitution, drugs are legal in some parts of the world.

For agencies, one benefit of the security clearance route is that the due process due an employee is less than in a straight-up firing. The decision to strip a security clearance can't be challenged in court, even though it has the same effect as firing someone if the job requires a clearance, which both the military and Secret Service do.

The Secret Service has already suspended the clearances of those allegedly involved in the episode. The Service announced Wednesday afternoon that one supervisor involved had retired, another is in the process of being removed for cause, and a line-level employee resigned.

Fidell suggested both agencies will find a way to punish those involved because of the embarrassment and distraction the incident caused.

"At the end of the day, a major presidential exercise of several days duration [was] completely trashed," he said.